On November 11, 1971 this suit was brought in the United States District Court by Congressman Dellums individually and by nine persons seeking to represent a class of all persons arrested on the steps of the United States Capitol on May 5, 1971 while engaged in a protest against the war in Vietnam. Persons named as defendants included various officials of the United States and of the District of Columbia and the District itself.1 Suit was predicated on an allegation that the defendant officials had engaged in a civil conspiracy to arrest and detain the class members with the purpose of frustrating their First Amendment right to protest against the war. Liability was asserted under the "First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution of the United States; the Civil Rights Act, 42 U.S.C. §§ 1981, et seq.; and the law of the District of Columbia," and damages were alleged to be in excess of $10,000 for each plaintiff and class member.2

The complaint stated that the class plaintiffs had met with some 2,000 persons on the Mall near the United States Capitol on the early afternoon of May 5, 1971. At that meeting plans were made to protest against the war in Vietnam by staging a public meeting at the Capitol, with Congressman Dellums and other Members of Congress to be in attendance and to address the assembled protestors. Pursuant to an agreement with police officials, those assembled on the Mall walked three abreast in groups of 21 from their meeting place on the Mall to the Capitol Grounds, obeying traffic signals and the directions of police officers along the way. At the Capitol the leaders were stopped by an officer of the Capitol Police, but were allowed to enter the Grounds when Congressman Dellums appeared and explained the arrangements for a meeting on the Capitol steps.

The group subsequently assembled on the East steps of the Capitol on the House side and "began to make and to listen to speeches concerning the People's Peace Treaty and related matters."3 While Congresswoman Abzug was addressing the crowd, at about 3:30 P.M., the police cordoned off the bottom of the steps, preventing anyone from leaving, and began arresting members of the assemblage. Arrests continued over the protests of Congressman Dellums and other Members of Congress, and the police refused Dellums' offer to persuade the crowd to disperse.

The complaint further alleged that those arrested were held for periods of from several hours to several days without being afforded due process of law. In addition, conditions of detention were said to have been inhumane in that there was severe overcrowding, inadequate sanitation, inadequate or filthy bedding, insufficient food, and no medical care. Access to attorneys and telephones was said to have been denied or severely restricted.

In answer the defendants generally denied that the demonstration at the Capitol had been peaceful and in accord with applicable law. They asserted probable cause for the arrests made at the Capitol and official immunity from prosecution. The District of Columbia raised its municipal immunity as a defense and further claimed that the individual defendants were at all times the servants of the United States. All defendants denied that conditions of detention had been inhumane.

After a period of pretrial motion practice and discovery, the trial court certified this suit as a class action in May 1973 and defined the class as "all persons who were arrested while assembled on the Capitol steps on May 5, 1971."4 This action came on for trial before a jury in December 1974. The evidence adduced at trial, as shall appear more fully below, was in conflict and provided support for the contentions in both the complaint and the answer. At the close of plaintiffs' case and again at the close of all the evidence, the defendants remaining in the case5 Deputy Attorney General Kleindienst, United States Capitol Police Chief James M. Powell, District of Columbia Police Chief Jerry V. Wilson, and the District of Columbia each moved for a directed verdict. Deputy Attorney General Kleindienst's motion was granted; all others were denied. The case was submitted to the jury and substantial verdicts were returned, as indicated in the margin.6

Chiefs Powell and Wilson and the District of Columbia each prosecuted appeals from the judgment entered below on the jury verdicts. The plaintiffs below have also appealed the directed verdict in favor of Deputy Attorney General Kleindienst. Finally, Chief Powell and the District have appealed from an order reinstating to this action three named plaintiffs who were dismissed before trial for failing to comply with discovery requests. These appeals were consolidated for argument; however, we have found it convenient to write separately in each. Accordingly, we will take up Chief Powell's appeal from the judgment below in this opinion; the points raised by Chief Wilson and the District of Columbia will be the subject of an opinion in No. 75-1975; the plaintiffs' appeal is treated by order in No. 75-2117; and objections to the reinstatement of certain named plaintiffs will be discussed in an opinion in Nos. 76-1418 & 76-1419.

Chief Powell was held liable to the class plaintiffs for common law false arrest, false imprisonment, and malicious prosecution and for a Bivens7 claim based on violations of the First and Fourth Amendments. In addition, he was held liable to Congressman Dellums on a Bivens claim based on the First Amendment. We begin by discussing a cluster of issues surrounding the false arrest-false imprisonment-Fourth Amendment claim (which shall hereafter be referred to simply as false arrest), and then consider points raised concerning liability for malicious prosecution of the class and First Amendment liability to both the class and Congressman Dellums.

I. FALSE ARREST, FALSE IMPRISONMENT, FOURTH AMENDMENT VIOLATION

The tort action of false arrest in both its common law and constitutional variants protects and vindicates the interest in freedom from unwarranted interference with personal liberty. The focal point of the action is the question whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails. While the central issue of the action is simply stated, the parties have somewhat divergent views on the mechanics of pleading, the allocation of the burden of proof, and the scope and elements of defenses available in a false arrest action. For this reason, and to aid later analysis, we now sketch the salient features of both the common law and constitutional action.

A plaintiff suing at common law must show that he has suffered an imprisonment and that the imprisonment was unlawful. The former issue is one of fact, potentially for the jury. Under the law of the District of Columbia, the unlawfulness of a detention is presumed once "an allegation (is made) that a plaintiff was arrested and imprisoned without process." Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.App.1973). The burden then shifts to the defendant to justify the arrest. Id.; accord, e.g., Pierson v. Ray, 386 U.S. 547, 556-557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27, 44 S.Ct. 52, 68 L.Ed. 146 (1923); see, e.g., Restatement (Second) of Torts §§ 10 (especially comment c ), 121 (1965). Justification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged. E.g., Shaw v. May Department Stores Co., 268 A.2d 607, 609 (D.C.App.1970). A lesser showing can also be made, namely that the arresting officer had reasonable grounds to believe a crime had been committed and that plaintiff's arrest was made for the purpose of securing the administration of the law (i.e., that the officer acted in good faith). See Wade v. District of Columbia, 310 A.2d 857, 862-863 (D.C.App.1973) (en banc ), citing Pierson v. Ray, supra; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1347-1348 (2d Cir. 1972); Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). See also Restatement, supra, §§ 121, 127.

The mechanics of pleading and proof in a Bivens action for false arrest are in our judgment identical to those sketched above. Although we know of no case delineating the parameters of a prima facie case under a Bivens false arrest theory, Pierson v. Ray, supra, indicates that the details of constitutional tort actions should be shaped by reference to the parallel common law. See 386 U.S. at 556-557, 87 S.Ct. 1213. The rule recognized in the District that an allegation of arrest and imprisonment without warrant shifts to the defendant the burden of justifying the arrest is the majority rule in this country8 and we see no identifiable purpose that would be served by adopting a different or more stringent definition of a prima facie case in constitutional litigation.9 On a different point, there can be no doubt that state and federal police officers sued under Section 1983 and Bivens, respectively, have available to them a qualified immunity defense, a privilege based on good faith and reasonableness, but that the burden is on the defendant officers to prove it.10 See Pierson v. Ray,supra, 386 U.S. at 555-557, 87 S.Ct. 1213; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra, 456 F.2d at 1347-1348; Hill v. Rowland, supra, 474 F.2d at 1377-1378; Jones v. Perrigan, 459 F.2d 81, 83 (6th Cir. 1972); Shifrin v. Wilson, 412 F.Supp. 1282, 1294-1295 (D.D.C.1976); cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); McSurely v. McClellan, 553 F.2d 1277, 1291 n.50 (1976) (en banc ); Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 77-78, 516 F.2d 594, 670-671 (1975) (en banc ), cert denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976); Apton v. Wilson, 165 U.S.App.D.C. 22, 29-33, 506 F.2d 83, 90-94 (1974).

In the instant case it is undisputed that members of the plaintiff class were arrested without a warrant. Thus the unlawfulness of the plaintiffs' subsequent and admitted imprisonment is presumed as a matter of law and, contrary to the assertion of Chief Powell, plaintiffs were not required to demonstrate that Chief Powell acted without probable cause. For the reasons set out above, the trial judge also correctly determined that the burden of proof was on Chief Powell to show that the May 5 arrests were privileged.

Thus the only issue for trial was whether Chief Powell acted in good faith in arresting plaintiffs and whether his actions were reasonable in light of all the circumstances. The Supreme Court has delineated the considerations which must be made in resolving this issue:

It is the existence of reasonable grounds for the belief (that cause for action existed) formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity. * * *

Scheuer v. Rhodes, supra, 416 U.S. at 247-248, 94 S.Ct. 1683-1692. To establish good faith an official must show that he was "acting sincerely and with a belief that he is doing right * * *." Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). In establishing the reasonableness of an arrest policemen are entitled to show reliance "on traditional sources for the factual information on which they decide and act," Scheuer v. Rhodes, supra, 416 U.S. at 246, 94 S.Ct. at 1691, although this proposition must be tempered by an understanding that warrantless arrests for misdemeanors (as here) are authorized by statute only where a violation takes place in the presence of the arresting officer. See 23 D.C.Code § 581(a)(1)(B) (1973).11 Finally, policemen are not "charged with predicting the future course of constitutional law," Pierson v. Ray, supra, 386 U.S. at 557, 87 S.Ct. at 1219, but at the same time an arrest may not be "justified by ignorance or disregard of settled, indisputable law * * *." Wood v. Strickland, supra, 420 U.S. at 321, 95 S.Ct. at 1000. Particularizing these standards to the present case, Chief Powell must show that he had an honest belief that the plaintiffs as a group were violating the law by assembling at the Capitol and, further, that this belief was reasonable in light of the facts available to him at the scene of the arrests and of the law as it then existed.

Notwithstanding the fact that Chief Powell has the burden of persuasion on the issue of qualified official immunity, he argues that a verdict should have been directed in his favor because the evidence overwhelmingly shows that the plaintiffs were in violation of the Capitol Grounds statute, 9 D.C.Code § 124 (1973),12 at the time of their arrests.13 Plaintiffs answer this argument by contending that the evidence taken in the light most favorable to them would support a finding that Chief Powell could not reasonably have believed that 9 D.C.Code § 124 as definitively construed in United States v. Nicholson, Nos. 20210-69A et al. (D.C. Ct. of Gen.Sess. June 19, 1969), aff'd, 263 A.2d 56 (D.C.App.1970) which all parties agree controls this case14 was violated by the activities of May 5. They further urge that, because plaintiffs were charged at the scene of the arrests solely with violating the District of Columbia unlawful entry statute, 22 D.C.Code § 3102 (1973),15 Chief Powell cannot now defend by showing merely that there were reasonable grounds for believing that 9 D.C.Code § 124 had been violated, but must show that there were reasonable grounds for believing that 22 D.C.Code § 3102 had been violated as well. Before turning to the evidence we must resolve this dispute about the applicable law, because Chief Powell asserts that the facts making out a Section 124 violation are materially different from those making out a Section 3102 violation in that the latter requires an order to disperse and an opportunity to disperse while, in his opinion, the former does not. In our view, Chief Powell's position is incorrect.

1. The Law Applicable to Arrests on May 5, 1971

(a)

At the outset we note that Chief Powell's argument has a serendipitous quality about it, for the record shows that Chief Powell unquestionably took some steps to order the crowd to disperse on May 5 and, moreover, he testified that standard practice at the Capitol would be for such orders to be given because it was the experience of the Capitol Police that many people were not aware of the statutes governing conduct at the Capitol and would, upon being notified of a potential violation, bring their conduct into line with the law.16 In addition, regulations issued by Chief Powell17 required that persons be given individual warnings to leave before they were placed under arrest for participating in a mass demonstration. According to Chief Powell's testimony, however, such individualized orders to leave were not given on May 5.18 Notwithstanding this administrative interpretation, Chief Powell urges that orders to disperse are not required by Section 124 and, further, that a violation of his own regulations in this regard has no bearing on the falsity of an arrest under that section. For the reasons set forth below, we find that orders to disperse were required, and we therefore reject Chief Powell's contention.

(b)

As indicated, all parties agree that the principles announced in Nicholson control this case. We have printed Chief Judge Greene's unpublished opinion in Nicholson as the Appendix to this opinion and, therefore, will only summarize points which are particularly relevant for present purposes.

In Nicholson 13 Quakers were arrested while standing on the steps of the Capitol reading names of Vietnam War dead from the Congressional Record. They were charged by information with violating 22 D.C.Code § 3102 in that they failed to leave the Capitol when requested by a Capitol policeman to do so. The Quakers moved to dismiss the information on the ground that 22 D.C.Code § 3102 could not constitutionally be applied to them because their activities were protected by the First Amendment.19 Judge Greene agreed, holding that the Capitol was a public forum and consequently that Section 3102 was invalid as applied at the Capitol since it set no standards whatever for its enforcement.20 Notwithstanding the conclusion that Section 3102 was unconstitutionally vague, Judge Greene considered and accepted in part an argument pressed by the Government that the indictments against the Quakers could be saved if the Government could show that the Quakers were also violating 9 D.C.Code § 124 at the time they were ordered from the Capitol. It was apparently the Government's theory that 9 D.C.Code § 124 either was not unconstitutionally vague or could be subjected to an appropriate limiting construction.

Reliance on Section 124 created further difficulties, however, since that statute, which bans all use of the Capitol as a public forum except as it is suspended in the discretion of the Speaker of the House and the President of the Senate,21 was also found to be unconstitutional as written. Worse, Judge Greene found that the suspension power, which the police had interpreted to allow creation of a "permit" system,22 had been used selectively and that

there are no written rules; permits likewise are usually not in writing; members of the public have no way of knowing whether they might be in violation of the law or how to avoid violations except by prior experience or by inquiries to Members of Congress or members of the Capitol Police Force.

The conclusion is inescapable that, as the law is administered, it is impossible for anyone to know whether his presence, or the presence of his group, on Capitol Hill is lawful, or unlawful. There is no set of regulations, orders, rules, or standards which he can consult, and the precedents of administration themselves are contradictory and uncertain.23

Notwithstanding these findings and conclusions, Judge Greene held that 9 D.C.Code § 124 could be saved from constitutional infirmity by a limiting construction. The language of the construction adopted is important and we quote it in full:

It is appropriate, therefore, under the statute to bar or to order from the Capitol Grounds, any group which is noisy, violent, armed, or disorderly in behavior, any group which has a purpose to interfere with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist, any group which has the effect, by its presence, of interfering with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist; and any group which damages any part of the building, shrubbery, or plant life. 22

22. In each category, the conduct would have to be more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others routinely permitted on the Grounds.24

Judge Greene then ruled that an indictment charging a violation of 22 D.C.Code § 3102 was constitutionally valid as applied to the Capitol if and only if the Government could show a simultaneous violation of 9 D.C.Code § 124 as limited.

(c)

We begin our consideration of the application of Nicholson to the instant case by noting that Judge Greene's opinion expressly stated that 9 D.C.Code § 124 is unconstitutional except when it is used as a ground "to bar or to order from the Capitol Grounds"25 one of the groups enumerated in the opinion. It is apparently Chief Powell's position that such language cannot be taken literally because the Nicholson opinion involved informations charging only violations of 22 D.C.Code § 3102, that orders to quit had in fact been given to the Nicholson defendants, and that the only issue before Judge Greene was the propriety of those orders. All this is true, but such a crabbed reading of Nicholson nonetheless does violence to Judge Greene's analysis since the point of Nicholson is that 22 D.C.Code § 3102 is a legal nullity as applied to demonstrations at the Capitol and informations charging a violation of that statute are valid only if the facts show a simultaneous and constitutionally permitted violation of 9 D.C.Code § 124, whether or not 9 D.C.Code § 124 is charged in the information.

In addition, the central conclusion of Nicholson is that 9 D.C.Code § 124 was unconstitutionally vague as written and administered. The vice of such vagueness is twofold.26 First, a vague statute puts too much discretion in the hands of officials, with the result that the statute may be enforced selectively against those who hold unpopular points of view. Second, a vague statute fails to give those subject to it fair notice of the point at which conduct becomes prohibited. Where some forms of conduct arguably regulated by the statute are protected by the First Amendment, such lack of precision creates an unconstitutional chilling effect.

Nicholson addresses both vagueness problems, particularly the latter "it is impossible for anyone to know whether his presence, or the presence of his group, on Capitol Hill is lawful, or unlawful."27 Were Nicholson read as Chief Powell suggests, however, its only effect would be to cabin executive discretion. There would still be no fair warning because, faced with "precedents of administration (which were) themselves contradictory and uncertain,"28 it would be impossible for anyone to tell when his otherwise constitutionally protected behavior (or that of his group) had become "more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others routinely permitted on the Grounds."29 Yet only if such a condition obtained would a violation of Section 124 have occurred.30 Accordingly, the only reading of Nicholson that would further Judge Greene's purpose of eliminating an unconstitutional chilling effect is the literal one that an order to quit must precede arrests under 9 D.C.Code § 124.31

Even if Nicholson were not conclusive on the need to give an order and opportunity to disperse before arrest under Section 124, facts peculiar to this case would have required such an order. First, it is undisputed that Speaker Albert had in fact suspended Section 124 prior to the time any arrests were made.32 Chief Powell testified that his understanding of Speaker Albert's instructions was that the protestors were to be allowed to remain while Members of Congress were speaking unless the crowd became disorderly, in which eventuality "we should ask these people to leave ; if they refused to leave, that we would have to take whatever steps necessary."33 With the statute suspended, there was no law which the plaintiffs could have been violating even if the Nicholson conditions were in fact present and, therefore, there was no probable cause for arrest and no reasonable ground for believing that there was until the suspension expired by its terms, one of which was that a dispersal order be given.

Second, the protestors were unquestionably granted an unwritten " permit," as described in Nicholson, to assemble on the Capitol Grounds and steps.34 Because "police officials * * * in effect told the demonstrators that they could meet where they did," "to sustain (plaintiffs') later conviction for demonstrating where they told (them they) could 'would be to sanction an indefensible sort of entrapment by the State convicting a citizen for exercising a privilege which the State had clearly told him was available to him.' " Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965), citing Raley v. Ohio, 360 U.S. 423, 426, 79 S.Ct. 1257,3 L.Ed.2d 13, 44 (1959).35 In these circumstances, no constitutionally valid arrest could have been made until an order to disperse had been given which was itself based on permissible considerations. See Cox v. Louisiana, supra, 379 U.S. at 571-573, 85 S.Ct. 476.

For the reasons stated above, plaintiffs could not constitutionally have been arrested as a group under either 9 D.C.Code § 124 or 22 D.C.Code § 3102 unless Chief Powell had reason to believe: (1) that the plaintiffs comprised one of the groups that could be banned or ordered from the Capitol under Nicholson; (2) that orders to disperse had been given which apprised the crowd as a whole that it was under an obligation to leave; and (3) that a reasonable opportunity had been given the plaintiffs to leave the Capitol. This conclusion, drawn from Nicholson, Cox, and the language of Section 124 all sources predating May 5, 1971 in our judgment represents well settled law which Chief Powell was obliged to know on pain of losing his qualified immunity. See Wood v. Strickland, supra, 420 U.S. at 321-322, 95 S.Ct. 992.

As we have already indicated, Chief Powell bears the burden of proof on the issue of his immunity. While this does not rule out the possibility of directing a verdict in his favor, it does require Chief Powell to demonstrate that the facts on each element of the immunity defense, taken in the light most favorable to appellees, are nonetheless so clearly in Chief Powell's favor that "reasonable men could entertain no doubt with regard thereto." Norfolk Southern R. Co. v. Davis Frozen Foods, Inc., 195 F.2d 662, 665 (4th Cir. 1952); accord, e. g., Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 656 n.6 (1st Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194 (1961); American Casualty Co. v. Gerald, 369 F.2d 829, 833 (4th Cir. 1966).

With this standard in mind, we now review the evidence tendered by Chief Powell as conclusively establishing his case.

First, under Nicholson Chief Powell was required to establish that it was reasonable to believe that plaintiffs constituted a group that was more noisy and more disruptive than other groups allowed on the Capitol Grounds.36 On this issue Chief Powell relies primarily on his own testimony to the effect that he was faced with an unruly, noisy, out-of-control mob from the moment he arrived at the Capitol steps. Plaintiffs, on the other hand, introduced evidence that equally noisy, unruly events had been held on the Capitol steps with no adverse action being taken by the police. In addition, officials testifying on behalf of the defendants stated that the demonstration was "fairly mild"37 and that no violation of the Capitol Grounds statute had occurred.38 Indeed, even Chief Wilson, a co-defendant, stated that "it was a reasonably orderly crowd," marred by only "a few particular misbehaviors."39 Finally, plaintiffs introduced evidence of an out-of-court statement by Chief Powell to Congressman Rangel, made on the evening of May 5, that "(the demonstration) was one of the more peaceful crowds that (Powell) had seen on the Capitol steps."40 Thus not only was the actual characterization of the events of May 5 contested, but the veracity of Chief Powell in testifying as he did was directly in issue. Given this state of the evidence, the issue was indisputably one for the jury.

The evidence is similarly in conflict on the question whether Chief Powell made a bona fide effort to make sure the crowd heard his dispersal order. Although there was certainly evidence that the jury could credit to the effect that Powell made attempts to inform the crowd and was each time hooted down and drowned out, there was also evidence that Chief Powell realized that the crowd had not heard his warnings and yet took no steps to correct the situation. For example, a reporter present at the scene testified that he had overheard Chief Powell say to Chief Wilson "that he (Powell) wasn't sure whether they (the demonstrators) heard him or not or (that) he didn't think a lot of them heard him.41 Regardless of this, no further warnings were made, although such warnings were required by Chief Powell's regulations. Nor was use made of a powerful police sound truck that was apparently at the scene, nor was any attempt made to use the public address system of the demonstration's leaders; indeed, an offer from Congressman Dellums to make announcements over that system was specifically refused by Chief Powell.42

Finally, a jury would in our judgment be entitled to conclude that Chief Powell was not acting in good faith. As we have already noted, Chief Powell's out-of-court admission to Congressman Rangel would belie Powell's claim of good faith. So also would Chief Powell's inaction after his remark to Chief Wilson which indicates that Powell was aware that notice to the crowd had been inadequate. Buttressing the inference of bad faith43 is the further fact that Chief Powell, by relying exclusively on dispersal orders shouted over a hand-held bullhorn in attempting to give notice, violated his own "Procedure for Handling Protest Groups"44 a regulation issued over Chief Powell's signature.

Notwithstanding the obvious conflicts in the evidence set out above, Chief Powell would have us direct a verdict on the theory that advice of counsel is an absolute defense and that the facts show conclusively that he relied on counsel present at the Capitol. This position is untenable both as a matter of law and as a basis for directing a verdict on the facts of this case.

The only point on which advice of counsel is claimed as a defense is the question whether plaintiffs constituted a group that could be ordered from the Capitol pursuant to the Nicholson opinion. It is not claimed that counsel advised Chief Powell that he could arrest plaintiffs without first giving them an order to disperse; accordingly, the scope of counsel's advice was not enough to create a complete defense. Nor would advice of counsel be a defense unless it was sought in good faith.45 Since a directed verdict would not have been proper on the good faith issue, it follows directly that no such verdict could be given on the strength of advice of counsel.

In any event, this is not a case where advice of counsel should make Chief Powell's belief on the Nicholson point per se reasonable. The law here was not highly technical, penetrable if at all only with the help of counsel. The controlling case was Nicholson, with which Chief Powell was fully acquainted. In addition, the central probable cause issue was one of fact: were the plaintiffs more noisy or disruptive than those routinely allowed onto the Capitol Grounds? On this issue Chief Powell, the officer in charge of the Capitol and a man of long experience, was obviously as expert as any counsel who might give him advice.

In addition, appellees raised a serious question of fact concerning whether Chief Powell had fully disclosed the House Speaker's orders to his legal advisor, Assistant United States Attorney Zimmerman, prior to asking his advice. Powell's own testimony shows conclusively that the piece of advice primarily relied on by Chief Powell Zimmerman's agreement with Powell upon arriving at the Capitol steps that "this is a most flagrant violation of 9-124" was rendered before Powell was advised that the Speaker had in fact suspended Section 124.46 Chief Powell could not reasonably have continued to act on that advice once he became aware of the Speaker's wishes. Nor would reliance on counsel offer any defense unless Chief Powell had disclosed to his attorney all the facts and circumstances surrounding the Speaker's orders.47 Yet on the critical question of whether Attorney Zimmerman was informed of the Speaker's suspension of Section 124, Attorney Zimmerman testified: "I have no recollection of that (the fact of suspension) being told me at the time in question."48 Indeed, although Chief Powell admits being told of the Speaker's orders, he did not claim at trial that he conveyed this information to Attorney Zimmerman. Viewing this evidence in the light most favorable to the plaintiffs, an inference can be drawn that Attorney Zimmerman counselled Chief Powell in ignorance of critical material facts. Accordingly, the validity of the advice of counsel defense was properly a question for the jury.

As a first alternative to his argument in favor of a directed verdict, Chief Powell argues that regardless of the sufficiency of the evidence, a new trial is required on the false arrest claim because the trial judge erred in instructing the jury with respect to the qualified official immunity defense. Our discussion thus far disposes of most of Chief Powell's objections and we will not rehearse those objections and our responses here. One point remains, however.

Focusing on selected parts of the jury instructions, Chief Powell complains that the jury was erroneously instructed that immunity could be made out only if there was probable cause. While we agree that Chief Powell could defeat liability by showing reasonable grounds to believe that probable cause existed plus, of course, subjective good faith we do not agree with his interpretation of the jury instructions. As the instructions were originally given, the trial court did use the terms "probable cause" and "reasonable grounds to believe probable cause existed" interchangeably. Upon objection, however, the court further instructed the jury that "(t)here is no difference between 'probable cause' and 'reasonable grounds to believe.' "49 There was no further objection. The supplemental instruction, obviously incorrect as a general proposition, had the effect in context of equating "probable cause" with the trial court's extended instruction on qualified official immunity.50 No mention of a different or more stringent meaning of "probable cause" was made at any point in the jury instructions; consequently the jury could not have been confused that the issue of immunity was to be resolved in accord with the court's extended instruction on the subject. Accordingly, there is no error.

C. New Trial Erroneous Introduction of Inflammatory Evidence

As yet another alternative Chief Powell argues that he should be afforded a new trial because the first trial was tainted by admission of evidence on the bad faith and malice issue through the testimony of non-party class members, which was of the form: "I saw an unidentified policeman beat an unidentified demonstrator while arresting him." Prejudice is not only said to rest on the inflammatory nature of such testimony, but is also said to be intimately linked to the fact that this suit was litigated as a class action. Frankly, we find the latter objection muddled and extremely difficult to understand, but we will attempt to address it as best we can.

Apparently Chief Powell's position is that, because the witnesses through whom this testimony was introduced were mostly unnamed class members, he was caught by surprise since he had not deposed these persons and since even if he had sought discovery the Federal Rules of Civil Procedure would not have allowed it. Chief Powell's reading of the Federal Rules is patently incorrect. While it is true that discovery against absentee class members under Rules 33 and 34 cannot be had as a matter of course, the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available, at least when the information requested is relevant to the decision of common questions, when the interrogatories or document requests are tendered in good faith and are not unduly burdensome, and when the information is not available from the representative parties. See Clark v. Universal Builders, Inc., 501 F.2d 324, 340-341 (7th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974); Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972); United States v. Trucking Employers, Inc., 72 F.R.D. 101, 104-105 (D.D.C.1976); Robertson v. National Basketball Ass'n, 67 F.R.D. 691, 699-700 (S.D.N.Y.1975); Bisgeier v. Fotomat Corp., 62 F.R.D. 118, 119-120 (N.D.Ill.1973); Gardner v. Awards Marketing Corp., 55 F.R.D. 460 (D.Utah 1972); cf. Wainwright v. Kraftco Corp., 54 F.R.D. 532, 534-535 (N.D.Ga. 1972) (although discovery under Rules 33-34 is not proper, discovery under Rules 30, 31, and 45 is proper and appropriate orders will be entered to ensure that defendant can adequately prepare its case). But see Fischer v. Wolfinbarger, 55 F.R.D. 129 (N.D.Ky.1971).

That Chief Powell did not get depositions from absentee class members who would be witnesses, therefore, only underscores the fact that he made no effort to take any discovery from such witnesses. Indeed, Chief Wilson and the District of Columbia took no discovery of anyone. Yet the names of all class members were in the hands of the District of Columbia. These names were made available to plaintiffs' counsel some time in the summer of 1973 18 months before trial began in conjunction with sending notice to class members. Moreover, there is no indication in the record that Chief Powell or any other defendant ever asked for a list of prospective witnesses. Because the defendants in this suit failed to take even elementary steps to protect themselves from surprise, they cannot now be heard to complain.

Having argued that he was deprived of discovery of relevant evidence, Chief Powell also argues an opposite proposition: that testimony regarding assaults and batteries committed by policemen was irrelevant and should have been excluded as inflammatory. The difficulty with this argument is that no objection was taken below on the grounds now asserted and the grounds stated below were not valid. Appellants asserted surprise; there was none other than that caused by their own failure to seek discovery. Reacting to class counsel's argument that such information was relevant to determine the level of damages, appellants properly objected to the relevance of the evidence on that score, but did not object when the court ruled that the testimony was relevant to the issue of the bad faith and malice of Chiefs Powell and Wilson at the time of the arrests.51 Indeed, appellants' own cautionary instruction which was given virtually verbatim by the trial judge52 recognized the relevance of the challenged evidence for the limited purpose of showing bad faith.53 Moreover, soon after the trial judge rejected class counsel's argument concerning relevance on the damages issue,54 he cut off additional challenged testimony as repetitious and inflammatory.55 In these circumstances, we see no ground for reversal.

D. New Trial Failure to Create Appropriate Subclasses

As a final alternative Chief Powell argues that trial of the false arrest claim by class action caused him to lose defenses he might otherwise have had if plaintiffs had proceeded against him individually or if appropriate subclasses had been formed at the time this case was submitted to the jury.56 This argument raises two questions: whether Chief Powell presented the theories now pressed by way of motion, proposed jury instruction, or objection to jury instructions in a manner likely to have apprised the trial judge of his contentions before the case was irretrievably submitted to the jury57 and whether the theories now tendered are in any event correct and supported by evidence introduced at trial.58

Chief Powell's argument, in short, is that the record shows that four to five persons were climbing on Capitol lampposts, that one or two persons were writing on the walls of the Capitol, that one named plaintiff David L. Preiss heard warnings to disperse yet did not do so, and that a group of 100 persons who were originally across the street from the Capitol steps heard orders to disperse and yet failed to do so.59 As to the climbers and writers, he asserts that there were unquestionably valid grounds for arrest. As to Preiss, Powell suggests that the jury instructions actually given were erroneous because there was no question that Preiss willfully refused an order to leave. Similarly, probable cause to arrest the second group of 100 protestors is alleged to be found in an order by the Capitol Police Board to clear the Capitol which was communicated to this group and which they willfully disobeyed.

We begin by considering to what extent these arguments have been waived by failure of appellants to take appropriate procedural steps below. Chief Wilson and the District of Columbia (but no federal defendant) filed an opposition to plaintiffs' motion for class certification. This opposition did not suggest a need for subclasses and did not indicate that a critical element of appellants' case would be proof that some persons heard warnings to disperse. Instead, it alleged generally that the claims of the class and particularly assault and battery claims, which were abandoned before trial were not suitable for class action determination. Two days before trial was to begin, and three years after the complaint was filed in this suit, the federal defendants moved for reconsideration of class certification. This motion again challenged the overall propriety of class action treatment and did not request subclassing. It did, however, indicate that "(c)ertain of the plaintiffs admit that they heard warning (sic ) to depart from the Capitol steps; other contends (sic ) that they heard no such warning."60 It was further indicated that "(s)ome members of the class were arrested at approximately 3:30 p.m., while in the presence of members (sic ) of Congress; other members of the class were arrested considerably later, after all the initial arrest (sic ) had been completed * * *."61 No attempt was made in this two-page memorandum to relate these alleged facts to any relevant legal theory. Indeed, throughout this lawsuit Chief Powell has contended that no dispersal order was needed for any arrest and, had this theory been accepted, it would have been immaterial that some members of the class heard the warnings and some did not. In short, these pretrial pleadings, which requested decertification and not subclassing, were insufficient to put anyone on notice that defendants sought to submit to the jury defenses requiring subclassing.

At the close of all the evidence appellants made a series of motions for directed verdicts, and in the colloquy on those motions it first became clear that the trial court was going to rule that an order to disperse was a mandatory element of the offense for which plaintiffs had been arrested. Appellants' counsel pointed out that one plaintiff Preiss, who was among the initial group of arrestees had testified that he heard warnings to disperse and willfully refused to do so. At this point class counsel indicated that a subclass for Preiss should be created.62 However, there was no mention of the second group of arrestees, or the climbers and writers, and no indication by appellants' counsel that they wished to try the claims of these groups as separate subclasses.

For reasons known only to the parties, the agreement reached as to Preiss was never written into the jury instructions tendered by either side. Nor was any objection to the absence of such a subclassing instruction made by defendants. We can only surmise that defendants made a tactical decision to abandon any attempt to prove this defense for fear of giving the jury the impression that their case as to the other 1,199 class members was weak or to avoid giving the jury an opportunity to "compromise" by holding for defendants on one claim while imposing liability for the claims of the other 1,199. Whatever the reasons, the trial judge never became aware of defendants' concern, if any then existed, that subclassing instructions had been improperly omitted from his extended and complicated charge. Nor did he become aware that anyone wanted a charge as to any other group of arrestees, since no jury instructions were tendered indicating this and no objections were raised to the absence of a subclass.

In these circumstances, we do not think Chief Powell sufficiently apprised the trial court of his position which was based on a few shreds of evidence in a complicated six-week trial before the case was submitted to the jury. Accordingly, Rule 51, Fed.R.Civ.P., now bars our consideration of these points.63

Moreover, Chief Powell's objections are at this point largely theoretical. No one testified that he could now identify those class members who were climbing or writing, and there was no contemporaneous recordation of any information which could lead to such an identification. Similarly, while it is plain that some 100 persons (out of 1,200) were arrested after the bulk of arrests had been made, it is also clear that Chief Powell has no means of identifying the members of this group. Arrest records made on the scene apparently do not differentiate between the initial arrestees and the 100, nor do the informations filed against the plaintiffs. Since defendants have not even tried to take discovery of any absentee class members, they cannot possess any admissions linking individual absentees to the second group of arrestees. Thus creation of subclasses to allow the jury to consider Chief Powell's present points would have been a meaningless gesture, and submission of the case to the jury on a class-wide basis has not affected the "substantial rights" of the parties.64

The jury found against Chief Powell on plaintiffs' malicious prosecution claim and awarded $3,000 to eight class members who stood trial on the criminal charges and $50 to all other class members. On this appeal Chief Powell challenges the sufficiency of the evidence to show that his actions caused the filing of criminal charges against the class. In his view the arrest at the Capitol does not constitute institution of criminal charges as that event is defined in the law of malicious prosecution.65 Rather, filing of formal informations is the event which triggers tort liability, Chief Powell maintains, and an Assistant United States Attorney, Luke Moore, allegedly exercising his independent judgment, filed the informations lodged against class members.

The record shows the following. The decision whether to proceed with filing informations was made in a meeting on the night of May 5, 1971. At the meeting Chief Powell and Assistant United States Attorney Zimmerman, who had been advising Powell and who was an eyewitness to the events at the Capitol steps, conferred with Assistant United States Attorneys Hannon and Moore.66 Powell and Zimmerman recounted the events of the day, and their story was memorialized in minutes not introduced into evidence. On the basis of this information, and apparently after some discussion between the three Assistant United States Attorneys present, Attorneys Zimmerman and Hannon were directed to draw up informations against the arrestees. These informations were filed, apparently by Assistant United States Attorney Moore, by some time on May 6 since arraignments began some time in the late morning or early afternoon of that date.67

Subsequent to the filing of informations, Attorney Moore obtained statements from two other eyewitnesses, Assistant United States Attorneys Larimer and Marcy, who told somewhat different stories about the events of May 5. Attorney Larimer's report indicated some doubt that Powell had given proper dispersal orders and also called into question the level of noise and confusion at the Capitol. Attorney Marcy indicated that he did not think everyone in the crowd had heard warnings to leave, but that he did think the presence of a police cordon line at the bottom of the steps gave arrestees a warning that they might be arrested. Attorney Moore apparently interviewed Members of Congress and congressional staff personnel some time after the informations were filed. On the basis of this further investigation Attorney Moore, in consultation with United States Attorney Flannery, made the ultimate decision to prosecute a test case with eight defendants picked at random from among the arrestees. When that case failed it was also Moore who determined that charges against all other class members should be dropped.

The issue of causation raised by these factors appears to be a novel one in this jurisdiction. For this reason we begin with a sketch of general principles.

It is the "interest in freedom from unjustifiable and unreasonable litigation that receives direct and primary protection" from the tort of malicious prosecution.68 Other interests, such as those in reputation, property, or liberty, are only secondarily protected.69 For this reason courts have held that a private citizen who knowingly and maliciously presents false information to an official, but who fails thereby to cause process to issue, cannot be held liable for malicious prosecution.70 Similarly, this court has held that a police officer who unreasonably or maliciously arrests an individual without a warrant cannot be held for malicious prosecution unless an information or indictment has been filed.71 Thus, where injury to the interest primarily protected by the tort of malicious prosecution is absent, injury to interests secondarily protected is apparently insufficient to support liability under the tort.

The relevant question, therefore, is whether Chief Powell's involvement in triggering the filing of informations is of such a nature that the presumption of independent action by United States Attorneys is overborne and a chain of causation can accordingly be traced to Chief Powell. In resolving this question we draw on the law concerning the liability of private persons who lay facts before the police. In so doing, however, we intimate no view on whether police officers can be held to a higher standard than private individuals.72

The law is clear that the chain of causation between Chief Powell and the filing of the informations against plaintiffs is broken thereby defeating tort liability if the decision made by Attorney Moore was independent of any pressure or influence exerted by Chief Powell and of any knowing misstatements which Powell may have made at the meeting on the evening of May 5.73 Although the record does tend to show that complaints lodged against persons arrested at the Capitol or the White House are handled with special courtesy which gives some pause with respect to the objectivity with which prosecutors can evaluate charges against those arrested for protesting the policies of the Congress or the President74 a generalized solicitude for complaints from those quarters, alone and unconnected to the events at hand, is not sufficient evidence to overcome the presumed independence of prosecutorial judgments made by United States Attorneys. Nor has it been shown that Chief Powell, by virtue of his official position, exerted any special influence over the judgment of such Attorneys. The record would, however, support an inference that Chief Powell had knowingly misrepresented material facts in the May 5 meeting with the Assistant United States Attorneys, for there was testimony that a "very uncomfortable" Chief Powell told Congressman Rangel on the evening of May 5 "that the defendants (class plaintiffs) were not that disorderly and that it was a peaceful crowd, but that (there) was nothing that he could do."75 On the other hand, although such an admission following the arrest of 1,200 persons would certainly be the sort of thing that would be remembered, none of the persons who testified about the May 5 meeting indicated that Chief Powell had expressed any reservations about proceeding with informations. Thus it seems extremely doubtful that Powell shared the reservations stated to Congressman Rangel with the Assembled United States Attorneys.

Notwithstanding our conclusion that there was evidence from which the jury could have concluded that Chief Powell had procured the filing of informations by making misrepresentations to the prosecuting attorneys, we think Chief Powell should get a new trial on the malicious prosecution claim. The jury instructions stated only that the jury must find that "the defendant instituted a criminal proceeding."76 We think this was error because no instruction was given defining the limited permissible meaning of the word " instituted" in the context of this case. To be sure, Chief Powell's counsel appears not to have made a formal objection below to the jury instructions, but our review of the record indicates a number of colloquies in which malicious prosecution was discussed with regard to both Chief Powell and Chief Wilson, and we are convinced that the trial judge was sufficiently apprised of the issue now raised to protect Chief Powell's right to appeal.

Without attempting to blueprint the further proceedings to be had on the malicious prosecution claim, we think it important to note two points needing further resolution. The evidence so far adduced shows that Attorney Zimmerman had a significant role in procuring prosecution of the plaintiff class. Whether this role was sufficient to absolve Chief Powell of liability is an issue so far unexplored by the parties which awaits further factual and legal elucidation best accomplished in the trial court. Second, the record also indicates that Attorney Moore turned to sources of information independent of Chief Powell before making the decision to prosecute a test case. Since separate damages were awarded against Chief Powell to the eight test case defendants, further analysis should be given to whether Chief Powell's role as a major prosecution witness gave him a sufficient casual nexus to the decision to prosecute to support such additional tort liability.

For the reasons stated above, we vacate the judgment against Chief Powell insofar as it awards damages for malicious prosecution and remand this facet of the case for a new trial.

III. FIRST AMENDMENT DAMAGES AND LIABILITY TO REPRESENTATIVE DELLUMS

Each class member and Congressman Dellums was awarded $7,500 for violation of First Amendment rights. Chief Powell challenges this verdict on a number of grounds: first, that there is no cause of action under Bivens for redress of First Amendment violations and that we should not create one; second, that there is insufficient evidence to sustain Congressman Dellums' contention that his First Amendment rights were violated and that, in any case, the damages awarded are grossly disproportionate to any possible harm suffered by him; and, finally, that the instructions on First Amendment damages were generally incorrect.

Whether there is a cause of action directly under the Constitution for violation of First Amendment rights is a question so far left open by this court.77 In Bivens Mr. Justice Harlan, concurring specially, indicated that "courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights."78 Yet he opined that "(t)he same, of course, may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted."79 It is apparently this language that has given courts pause in analyzing whether a right of action should be implied directly from the Constitution for redress of violations of interests protected by other than the Fourth Amendment. Given the intangible nature of the liberty interests at stake in many Fourth Amendment cases and the broad familiarity of federal courts with equitable relief for First Amendment violations, it is difficult to identify here the impediments feared by Mr. Justice Harlan. Indeed, the Supreme Court has recently approved in principle the award of reinstatement and back pay relief for violation of First and Fourteenth Amendment rights of a non-tenured schoolteacher.80 The unanimous Court dealt explicitly with the problem of causation and apparently found no difficulty in prescribing the elements of a cause of action and defenses thereto.81

Here, moreover, there can be no question of causation, at least as to class members. If they were arrested while lawfully exercising "basic constitutional rights in their most pristine and classic form,"82 the violation of First Amendment rights is directly attributable to the arresting officers. Dellums' complaint, broadly construed, also stated a First Amendment violation directly traceable to the arresting officers because the gravamen of that complaint was that Dellums' audience was arrested, thereby preventing him from speaking to them. As we have recently stated, " '(T)he point of ultimate interest (of the First Amendment) is not the words of the speakers, but the minds of the hearers,' "83 and manifestly a speaker will be deprived of an opportunity to affect those minds if his audience is arrested and carted away. Certainly the harm is as great as if the speaker had himself been silenced.84

This brings us to the question whether the quantum of damages to be awarded for First Amendment violations is administrable by the courts. We think it is in principle no less administrable than damage awards for other intangible interests protected by the Constitution or at common law. The interest in freedom from apprehension of immediate invasion of one's person, protected for hundreds of years by the law of assault, is only one example of a non-quantifiable interest whose recompense in money damages is routinely left to a jury under proper instructions. The interest protected by the First Amendment in the context of this case is no less certain of quantification or conceptualization.

Basically, what is at stake here is loss of an opportunity to express to Congress one's dissatisfaction with the laws and policies of the United States. Staged demonstrations capable of attracting national or regional attention in the press and broadcast media are for better or worse a major vehicle by which those who wish to express dissent can create a forum in which their views may be brought to the attention of a mass audience and, in turn, to the attention of a national legislature. It is facile to suggest that no damage is done when a demonstration is broken up by unlawful arrests simply because one could write an individual letter to a congressman or because the demonstration might be held at another day or time. Few letters to congressmen command a national or regional audience. And often it is the staging and theatrics if you will, the time, place, and manner of the demonstration which express the passion and emotion with which a point of view is held. The demonstration, the picket line, and the myriad other forms of protest which abound in our society each offer peculiarly important opportunities in which speakers may at once persuade, accuse, and seek sympathy or political support, all in a manner likely to be noticed. Loss of such an opportunity is surely not insignificant.85

That loss of an opportunity to demonstrate constitutes loss of First Amendment rights "in their most pristine and classic form"86 does not mean, however, that monetary recompense should be extravagant. The award must be proportional to the loss involved insofar as it seeks to compensate intangible injuries. The jury cannot simply be set loose to work its discretion informed only by platitudes about priceless rights. Comparing these principles with the instructions actually given the jury, we find error because those instructions did not require the jury to focus on the loss actually sustained by the plaintiffs. This is not, after all, a case in which the demonstration was thwarted altogether the program of events was virtually complete before any substantial number of arrests had been made. In these circumstances, the $7,500 judgment is totally out of proportion to any harm that has been suffered, and therefore we vacate that judgment and remand this facet of the case for a redetermination of First Amendment damages.87

The judgment concerning Representative Dellums' damages must also be set aside for the reasons stated above. Contrary to appellants' contention, however, we think there was sufficient evidence that Congressman Dellums' rights were violated. According to his own testimony, which is largely uncontested and uncontradicted, Representative Dellums cut short his speech to the crowd in an attempt to stop the mass arrests which had begun just prior to that speech. He had planned to continue speaking once he accepted the People's Peace Treaty, but both that speech and presentation of the Treaty never occurred because the arrests thwarted completion of the demonstration. Finding sufficient evidence to go to the jury, and there being no objection made to the jury instructions concerning liability to Representative Dellums, we affirm the jury's finding of liability and remand this claim for further proceedings not inconsistent with this opinion.

In the final analysis, the action below was in the mold of the classic jury trial.88 In the course of a six-week trial over 60 witnesses appeared. The evidence was starkly clashing. The plaintiffs told of a peaceful and reasonably well organized march from the Mall to the Capitol and of a gathering on the steps that may have been marred by a few instances of misbehavior on the fringes but was on the whole peaceful, attentive, and no more noisy than other groups routinely allowed to use the Capitol for like purposes. The plaintiffs also told of police indifference to civil and human rights which was alleged to have been part of a conspiracy to quiet dissent through false arrest and preventive detention. Chief Powell, like our Brother Tamm, told of a week of violence and disorder, of intelligence concerning plans to invade the Capitol buildings, of fear for the safety of congressmen and congressional staff, and of noise, disorder, and confusion on the Capitol steps. This mass of conflict, teeming with issues of credibility, went to the jury under an elaborate set of instructions which are, for the most part, impeccably correct. The jury held for the plaintiffs and except as noted here and in No. 75-1975, the jury's verdict is

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v.

JOAN NICHOLSON, JIM B. HART, BOYKIN A. REYNOLDS, MARY E. VAN

On June 4, 1969, defendants (together with nine others) were arrested for and charged with unlawful entry, in violation of D.C.Code § 22-3102. Two days later, prior to trial, defendants moved to dismiss the Informations on constitutional grounds. The testimony1 taken on the motion concerned primarily the standards used in administering the laws relating to the use by the public of the Capitol Grounds. That portion of the testimony is detailed and discussed infra, principally at pp. 5-7 (--- of --- U.S.App.D.C., 199-200 of 566 F.2d).

The evidence also showed that defendants (who are members of and sponsored by the Quaker Action Group) were arrested on the center steps of the East Front of the Capitol while they were reading a list of the Vietnam war dead from the Congressional Record. The arrests occurred when the defendants refused to leave in compliance

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with an order from James M. Powell, Chief of the Capitol Police.2 Other Quakers in groups of approximately the same size had previously been arrested when they engaged in similar conduct under the same sponsorship. There is an indication that these activities will continue.

* The unlawful entry statute provides for the punishment of anyone who, being on public or private property "without lawful authority to remain . . . thereon", refuses to leave on demand of the person lawfully in charge. As applied to privately-owned land, this kind of law generally raises few difficult legal problems because ownership of such land ordinarily includes the right, arbitrarily or otherwise, to curtail admission and use.

The application of trespass statutes to government land presents greater complexities. Some species of government property e. g., the offices of executives and those of many other government workers; conference chambers; scientific or research facilities; storage warehouses of valuable commodities are entitled to be as immune from invasion by one not wanted on the premises as is private realty. But there are other types of government land public parks, streets and sidewalks, and historic landmarks which may not ordinarily be closed to the public for reasonable use. See Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969).

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The Capitol of the United States, a national historical shrine and the political centerpiece of the Republic, is in the latter category. It may not be declared off limits to the people. Indeed, the Congress invites and welcomes the public.

In view of the broad and general invitation extended to the citizenry to this preeminently public building and the surrounding grounds, individual citizens could not be held to be "without lawful authority to remain . . . thereon", within the meaning of the unlawful entry statute, in the absence of some other, specific bar to their presence.

That bar could not, legally, be an order by the Chief of the Capitol Police issued on his own authority. Chief Powell would have the power to order someone ejected from the Capitol Grounds by virtue merely of his official position only if he had the same kind of proprietary interest in and control over the United States Capitol that an ordinary householder has with respect to his own home which clearly he does not. See Hague v. C.I.O., supra, 307 U.S. at 514 (59 S.Ct. 954). He can order the ejection only of those who have no legal right to be there.

In other words, the order to these defendants to leave was valid only if it was based on something other than and additional to the unlawful entry statute itself or the Chief's official status. And the only other source of authority cited by the prosecution is the Capitol Grounds statute, D.C.Code §§ 9-118 to 9-132.3 Thus, it is the meaning and the validity of the Capitol Grounds

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statute which are really at issue here the unlawful entry law adds nothing.4

Defendants argue that the statute is vague and for that reason unconstitutional. Cox v. Louisiana, supra; Wright v. Georgia, 373 U.S. 284, 292, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General Construction Corp., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

D.C.Code § 9-124 forbids anyone to "parade, stand, or move in processions or assemblages . . . or to display . . . any flag, banner, or device designed or adapted to bring into public notice any party, organization or movement" except as permitted by the Speaker of the House and the President of the Senate for "occasions of national interest becoming the cognizance and entertainment of Congress" (D.C.Code § 9-128).5

The statute (particularly section 128) is sufficiently broad as interpreted by those charged with its enforcement6 to lend itself to selective application. Moreover,

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the standards actually employed have been imprecise, fluctuating, and unavailable to the public.

Chief Powell, who enforces the Capitol Grounds statute, was questioned at some length concerning his understanding of the standards governing that enforcement. He testified that there are no written rules; permits likewise are usually not in writing; members of the public have no way of knowing whether they might be in violation of the law or how to avoid violations except by prior experience or by inquiries to Members of Congress or members of the Capitol Police Force;7 the rules applicable to the grounds are not identical to those applicable to the steps, and those which govern the use of some steps differ from those applicable to other steps; no assemblages for any purpose are allowed on the steps without a permit, but high school students and other undefined groups sometimes do not need a permit if they assemble on the steps for photographs which are taken more or less "spontaneously" or within fifteen minutes or so; such groups are allowed to meet in uniform, but not the American Nazi Party, and possibly, or possibly not, the American Legion; banners and flags may not be deployed, but a "non-political organization which had no pro or con" might be permitted to display banners; a relatively small group talking on the steps for approximately half an hour might or might not be in violation if its members refused to obey an order to leave; and decisions are made on a case-by-case basis rather than according to precise general rules.

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The internal inconsistencies revealed by Chief Powell's testimony are further complicated by the fact that others in a position to know contradicted some of his assertions.

Chief Powell stated that permits are required regardless of the size of the group; Sergeant Schaap of the Capitol Police Force testified (in another proceeding) that groups of as many as ten persons may assemble without a permit; members of the Poor Peoples Campaign were allowed on the grounds in groups of twenty; press reports indicate that demonstrators in large numbers supporting Representative Adam Clayton Powell were permitted on the steps because Chief Powell had "orders to permit the demonstration;" and on the occasion of an earlier Quaker arrest, four other fairly sizeable groups were permitted freely to gather in the vicinity.

Chief Powell maintained that Members of Congress require permits for group gatherings on the Capitol steps like everyone else. But Representatives George E. Brown and Edward I. Koch both testified that permits are not required on such occasions; that "innumerable" such groups are invited8 by Members of Congress to the steps; that by custom "it has never been required that one ask permission to do this;" and that these activities take place constantly at the sole discretion and on the

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sole authority of the Congressman involved.9

The vagueness of the administrative practice and the selectivity with which it is applied may also be illustrated by the fact that, when these defendants were arrested, the Congressmen who were with them and who participated in the same conduct, were not (although they specifically waived any congressional immunity).

The conclusion is inescapable that, as the law is administered, it is impossible for anyone to know whether his presence, or the presence of his group, on Capitol Hill is lawful or unlawful. There is no set of regulations, orders, rules, or standards which he can consult, and the precedents of administration themselves are contradictory and uncertain.

Chief Powell's suggested remedy that a member of the Capitol Police Force be asked for advice does not solve the problem, for two reasons. First, the evidence is that no set of standards exists that is followed by all members of that Force. Second, and more fundamentally, in a government of laws, the regulation of conduct particularly conduct in the sensitive area covered by the First Amendment must be predicated on a set of definite rules, not on the opinions of police officers. Cf. Cox v. Louisiana, supra, 379 U.S. at 552, (85 S.Ct. 843).

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Broad laws can be given structure by consistent patterns of administration. But the enforcement of this law, as revealed by this record, has done nothing more than to add to its uncertain substance the grains of individualized decision-making a process which has failed to provide it with constitutional strength. Compare Staub v. City of Baxley, 355 U.S. 313, 322, (78 S.Ct. 277, 2 L.Ed.2d 302) (1958).

It remains to be determined whether statutory construction can give more definitive shape to this law and thus save it from invalidity.10 Cf. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).11

The evidence, the arguments, and the background materials indicate that three lines of construction are conceivable, two indicated by the predominant patterns of administration, the other by several indicia of congressional history and understanding.

Leaving to one side the aberrations and ambiguities, Chief Powell's testimony suggests that, insofar as enforcement of the Capitol Grounds statute is concerned, groups of persons are classified generally into three broad categories. The first is comprised of school children and some others who are permitted to gather for such activities as the taking of "spontaneous" photographs with their congressional representatives without the(9)

necessity for a waiver or permit. The second category consists of groups which are "noncontroversial and non-political." Upon request, these groups are given a waiver by the Speaker, the President of the Senate, or both, permitting them to assemble on the Capitol Grounds. Those who are deemed to be controversial or political are in the third category and are refused a waiver, no matter how small the group12 or how well behaved its members.

The standard of noncontroversiality13 is impossible of even-handed, impartial, and constitutional application.

What one person may consider well settled and beyond debate may be highly controversial to another. Even students whom Chief Powell considered the least controversial of all are scarcely always that, in this age of college and high school demonstrations and confrontations. With controversiality as the yardstick, who would and who would not be permitted to assemble on Capitol Hill an organization of student radicals; an equal number of middle-of-the-road fraternity men; or an organization of militant young conservatives? Is a group advocating segregation more controversial or less so than one preaching integrated housing?14 Is an organization

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protesting the Vietnam conflict more or less controversial than another supporting the war?

The answers obviously depend upon the point of view of the person making the determination.

But under our constitutional system, no public official executive, legislative, or judicial can have the power to permit or to prohibit assembly on property belonging to the people based on his notions of what stand on public issues may be controversial. In the first place, the concept of controversiality is simply not sufficiently tangible to serve as a solid basis for this kind of decision. Beyond that, lack of controversy is too easily equated with orthodoxy, and controversy with dissent. Yet the controversial is as entitled to be heard as the indisputable, and it may need a hearing far more. In short, for several reasons the controversiality standard employed by Chief Powell is not compatible with constitutional values and principles.

The government suggests, alternatively, that it may be that the distinctions which are being made in the administration of the Capitol Grounds law have their roots not in the political coloration of the particular groups but in the type of activity they engage in while at the Capitol. If they come as tourists or visitors, it is said, they are permitted to gather; if they come to engage in persuasion by speech or sign or assembly, their presence is prohibited. This, the prosecution argues, is a perfectly proper and constitutionally unobjectionable practice. But this restatement of the permit policy amounts to but another way of saying that the Capitol

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Grounds are open to all except those who seek to use them for the exercise of First Amendment rights. That, however, is a constitutionally impermissible standard, not only under the First Amendment but also under the due process clause of the Fifth Amendment.15

Absent compelling circumstances, members of the public may not be excluded from public areas because of their purpose to use these areas for the exercise of First Amendment rights. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Food Employees v. Logan, 391 U.S. 308, 315, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 267 (1951); cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). For the streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions." That use may be regulated "but it must not, in the guise of regulation, be abridged or denied." Hague v. C.I.O., supra, 307 U.S. at 515, 59 S.Ct. at 964. For these reasons, and because First Amendment rights occupy a "preferred position" (Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948)), the burden is on the government to establish the existence of compelling circumstances, justifying a restriction. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

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A legislative body particularly could not permit access to it of only the innocuous, for peaceful, reasoned controversy and debate are the very lifeblood of the democratic process.

In this day of the violent confrontation, the harsh, non-negotiable demand, the disregard of the most elementary forms of civilized discourse, it is especially important that peaceful speech and courteous persuasion be given their rightful chance. It would be strange, indeed, if our constitutional system, and especially the First Amendment, were to countenance the congregation on the grounds occupied by the national legislature of all manner of groups except those who wish to speak out peacefully on the controversial issues of the day. That is not the mark set by the Bill of Rights.

It is presumably for that reason that Mr. Justice Stewart, speaking for a near-unanimous Supreme Court, held in the controlling case of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), that non-violent demonstrations on the grounds of the South Carolina State Capitol were constitutionally protected from interference,16 and reversed breaches of the peace convictions of 187 Negroes protesting there against alleged discrimination.

Lest there be any question about what was meant in Edwards, the Court removed that doubt three years later in Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). In that case, in upholding a conviction for assembling not far from a jail, the Supreme Court drew a sharp distinction between such a meeting and one held close to a structure housing

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a legislative body. Said the Court (385 U.S. at 41, 87 S.Ct. at 244): "In Edwards, the demonstrators went to the South Carolina State Capitol Grounds to protest. In this case they went to the jail. Traditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not."Edwards could be distinguished from the instant situation only on the theory that there is a First Amendment right to speak, assemble, and petition near State legislative buildings but no right to do so near the buildings occupied by the Congress of the United States. Not only is there no warrant in either logic or history for such a distinction, but to make it would turn upside down both the constitutional and the practical realities.

The First Amendment which protects the rights to free speech, assembly, and petition, is addressed primarily to the Congress, and only by implication has it been applied also, by way of the Fourteenth Amendment, to the States. Moreover, in this day of great federal power and influence, the right to petition is, if anything, more important in relation to the federal authorities than it is in relation to the governing bodies of the individual States. In short, Edwards applies here a fortiori.

For these reasons, the statute could not constitutionally be applied to enforce a policy of keeping off the Capitol Grounds groups of persons merely because they are controversial in character or because they seek to exercise First Amendment rights.17

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The other possible line of construction of the law rests on legislative history and statutory development. It is not solidly grounded in administrative practice or actual use, yet, for reasons which will be developed below, it is the one to be followed.

The original purpose of section 124, when enacted in 1882, was not to bar all controversial groups or to keep from the Capitol Grounds all except tourists and visitors, but only "to prevent the occurrence near (the Capitol) of such disturbances as are incident to the orderly use of public streets and places." 22 Stat. 126.

Recent amendments to the companion section 123 an